Why White House Rescinding Invitation to Eagles Could Boost Colin Kaepernick’s Collusion Case

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President Donald Trump on Monday abruptly disinvited the entire Philadelphia Eagles team from attending a White House ceremony on Tuesday. The ceremony would have been in honor of the Eagles defeating the New England Patriots in Super Bowl LII.

In a statement, Trump objected to certain Eagles players partaking in protests during the playing of the national anthem. Trump depicted the players as having a disagreement “with their President because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country.” The White House will still welcome Eagles fans to join “a different type of ceremony—one that will honor our great country, pay tribute to the heroes who fight to protect it, and loudly and proudly play the National Anthem.”

Trump’s decision is significant on several levels.

First, rescinding the invitation appears to be unprecedented in American history. According to ESPN writer Thomas Neumann, the White House’s custom of inviting a championship team began in 1924. At the time, President Calvin Coolidge invited the Washington Senators—fresh off a World Series victory against the New York Giants—to celebrate at the White House. There is no record of another team being disinvited by a sitting president after the team already accepted an invitation (Trump also made history last year when he didn’t invite the Golden State Warriors to a White House ceremony after they beat the Cleveland Cavaliers in the 2017 NBA finals; for their part, the Warriors signaled they probably wouldn’t have accepted Trump’s invitation anyway).

From a logistical standpoint, a last second disinvitation is highly disruptive. Players and team officials—and their families—likely changed their offseason schedule to attend. The Eagles also undoubtedly incurred significant financial expenses in making arrangements for the D.C. trip. Going forward during the Trump presidency, it stands to reason that some championship teams will become more hesitant before accepting a White House invitation. They would not want to be embarrassed as the Eagles have now been.

Second, the sudden disinvitation—at the 11th hour, after months of planning—raises the possibility that the White House might have come across information or a rumor that caused it to take such dramatic action. Perhaps the White House became concerned about a potential player protest during the White House visit. In May, Twitter user @KayFusion asked me about potential repercussions of players kneeling during a visit to the White House. As a government building staffed by government employees, the White House is, in a general sense, obligated to protect First Amendment free speech rights. While a variety of security and privacy concerns allow the White House to restrict the behavior of visitors, a player kneeling or engaging in some other form of peaceful protest probably wouldn’t trigger security concerns. The White House might have felt that there was a risk of a controversial moment with Eagles players visiting. On the other hand, in a tweet Monday night, Eagles wide receiver Torrey Smith insisted that not many Eagles players were going to attend anyway.

Third, and most consequential to the NFL, the disinvitation fits the theory of collusion advanced by Colin Kaepernick’s attorneys, Mark Geragos and Ben Meiselas. Pursuant to Article 17 of the collective bargaining agreement (and as detailed more extensively in other SI stories), Kaepernick can only prevail in his collusion grievance if he proves that two or more teams, or the league and at least one team, conspired against him. Here, the conspiracy would refer to an agreement or understanding to deny him an opportunity to sign with a team.

Keep in mind what the collusion standard requires. If one owner decided, on his own, to not sign Kaepernick for political/anthem reasons, that would not constitute collusion. The reason why is due to the fact that collusion requires the involvement of multiple teams (or the involvement of the league and at least one team). Similarly, if one owner spoke with Trump and after that conversation decided to not sign Kaepernick, that too would not describe collusion. That is because for purposes of a labor grievance in the NFL, Trump is merely a third party (albeit perhaps the most influential third party on Earth). The collective bargaining agreement does not govern the President of the United States.

Yet from the moment they filed a grievance on Kaepernick’s behalf last October, Geragos and Meiselas have asserted that there is a disturbing relationship between the absence of interest by NFL teams in signing Kaepernick and the direct influence of Trump to keep Kaepernick out of the league. To wit, last October, Geragos stated, “… athletes should not be denied employment based on partisan political provocation by the executive branch of our government. Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation.”

Along those lines, Geragos and Meiselas contend that owners are afraid of Trump taking action against the league over anthem protests. This fear has—possibly—made owners talk among themselves and caused them to discuss Kaepernick. If such discussion included comments about not signing the quarterback, Kaepernick’s odds for prevailing in his grievance would climb dramatically. This is because he would have acquired evidence of collusive behavior.

To that point, Trump has spoken and tweeted numerous statements condemning the NFL for not “firing” players who protest the anthem. Trump has also tweeted critical comments about federal tax laws that give some NFL owners an advantage regarding their stadiums. In one tweet from October 2017, the President asked “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!” Trump also applauded the NFL’s new national anthem policy, which authorizes the NFL to punish teams whose players appear on the field before games and kneel during the anthem; teams under this policy can also punish kneeling players.

As shown in leaked tapes from an October 2017 meeting involving league officials, owners and players, some NFL owners appear intimidated by Trump. Kaepernick’s attorneys have deposed some of those owners in recent months. If those owners admitted, under oath, that they spoke with other owners (or spoke with league officials or officials of other teams) about not signing Kaepernick, then Kaepernick’s grievance argument would morph from legal theory into winning reality.

Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O’Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.

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